IN THE SUPREME COURT OF IOWA

FILED

SUPREME COURT NO. 11-0657 P6Ik County Law No. LACV 119246

OCT 0 0 201!

CLERK SUPREME COURT]

THE ESTATE OF ERIKA L. HERREN ANDERSON, by and through its duly appointed administrator, Todd Herren; TODD HERREN, individually and as next best friend and natural father of RYAN HERREN, a minor and BRYNN HERREN, a minor; Plaintiffs-Appellants, vs. IOWA DERMATOLOGY CLINIC, PLC, a corporation; CHARLES W. LOVE, M.D., an individual; and PATHOLOGY LABORATORY, P.C, a corporation, now known as IOWA PATHOLOGY ASSOCIATES, P.C, a corporation; Defendants-Appellees.

APPEAL FROM THE IOWA DISTRICT COURT FOR POLK COUNTY THE HONORABLE JUDGE RICHARD G. BLANE, II

PLAINTIFFS-APPELLANT'S FINAL BRIEF AND REQUEST FOR ORAL ARGUMENT Alan O. Olsen AIN 000014073 Marc A. Humphrey AT0003843 3116 Ingersoll Ave. 2203 Grand Avenue Des Moines, Iowa 50312 Des Moines, Iowa 50312 Telephone: (515) 271-9100 Telephone: (515) 331-3510 Facsimile: (515) 271-8100 Facsimile: (515) 331-3544 E-Mail: [email protected] E-mail: [email protected] ATTORNEYS FOR PLAINTIFFS-APPELLANTS

TABLE OF CONTENTS TABLE OF CONTENTS

1

TABLE OF AUTHORITIES

3

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1

STATEMENT OF THE CASE

3

STATEMENT OF FACTS

4

ROUTING STATEMENT

8

PRESERVATION OF ERROR

8

I.

THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR

SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THE DOCTRINE OF EQUITABLE ESTOPPEL BARS DEFENDANTS FROM ASSERTING A LIMITATIONS DEFENSE II.

9

THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR

SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THE CONTINUIM OF NEGLIGENT CARE DOCTRINE BARS DEFENDANTS FROM ASSERTING A LIMITATIONS DEFENSE

9

STANDARD OF REVIEW ARGUMENT A.

9 10

Plaintiff's Claim of Equitable Estoppel Should Bar Defendants' from Asserting

their Limitations Defense in this Case B.

10

In Accordance with the Continuum of Negligent Treatment, the Limiting

Statutes Should Not have Began to Run Until September 6, 2007 i.

19

The continuum of negligent treatment applies to lowa Dermatology and Dr.

Love because there was a continuous and unbroken course of negligent treatment that was so related that the treatment constituted one continuing wrong a.

20 Defendants lowa Dermatology and Dr. Love provided a continuum of

negligent care when they failed to diagnose Erika's melanoma through the diagnostic testing and physical examinations that spanned from 1996 to 2007 22 b.

The treatment of Erika's skin lesions was so related that it constitutes one

continuing wrong by both lowa Dermatology and Dr. Love

31

ii.

The continuum of negligent care should apply to Pathology Associates

because they worked in conjunction with lowa Dermatology and Dr. Love to provide health care to Erika as one team..... CONCLUSION

32 35

ii

TABLE OF AUTHORITIES Cases Baier v. Ford Motor Company, 2005 WL 928615 (ND Iowa 2005)

4, 10

Blanchette v. Barrett, 640 A.2d 74 (Conn. 1994)

4, 14

Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005) Comstockv. Collier, 137 P.2d 845 (Colo. 1987)

4, 9, 10 4, 14

Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000)

9

Cunningham v. Huffman, 609 N.E.2d 321 (111. 1993)

4, 14

Ferrara v. WW/, 753 N.E.2d 1179 (2d Dist. 2001)

4, 14

Hull v. Medical Associates ofMenomonee Falls, Ltd., 589 N.W.2d 454 (Ct. App. 1998)

4, 14

Junkins v. Branstad, 412 N.W.2d 130, 132 (Iowa 1988)

9

Kelly v. /owz M/f. i/w. Co., 620 N.W.2d 637, 641 (Iowa 2000)

9

Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995) Shriver v. City ofOkoboji, 567 N.W.2d 397, 400 (Iowa 1997) Smith v. Dewey, 335 N.W.2d 530 (Neb. 1983)

passim 9 4, 14

Statutes Iowa Code §614.1(9) (2011)

3, 19

Iowa Rules of Appellate Procedure 6.903(2)(i)

35

Iowa Rules of Appellate Procedure 6.1101(2)(d)

10

iii

Iowa Rules of Appellate Procedure 6.907

11

Other Authorities Miller, Robin, Timeliness ofAction Under Medical Malpractice Statute of Repose, Aside from Effect ofFraudulent Concealment of Patient's Cause ofAction, 14 A.L.R.6th 301 (2006)..

4, 14

Rook's Textbook of Dermatology vol. 2 (Tony Burns et al, 8th ed., WileyBlackwell 2010)

4, 16, 17

iv

STATEMENT OF ISSUES PRESENTED FOR REVIEW I.

THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO THE APPLICABILITY OF THE DOCTRINE OF EQUITABLE ESTOPPEL WHICH BARS DEFENDANTS FROM EVEN ASSERTING A LIMITATIONS DEFENSE.

II.

THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO THE APPLICABILITY OF THE CONTINUUM OF NEGLIGENT CARE DOCTRINE WHICH DELAYS THE COMENNCEMENT OF THE STATUTE OF LIMITATIONS UNTIL SEPTEMBER 6, 2007.

Cases Baier v. Ford Motor Company, 2005 WL 928615 (ND Iowa 2005). Blanchette v. Barrett, 640 A.2d 74 (Conn. 1994). Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005). Comstockv. Collier, 131 P.2d 845 (Colo. 1987). Cunningham v. Huffman, 609 N.E.2d 321 (111. 1993). Ferrara v. Wall, 753 N.E.2d 1179 (2d Dist. 2001). Hull v. Medical Associates ofMenomonee Falls, Ltd., 589 N.W.2d 454 (Ct. App. 1998). Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995).

Smith v. Dewey, 335 N.W.2d 530 (Neb. 1983).

Statutes

Iowa Code §614.1(9) (2011).

Other Authorities Miller, Robin, Timeliness ofAction Under Medical Malpractice Statute of Repose, Aside from Effect of Fraudulent Concealment of Patient's Cause of Action, 14 A.L.R.6th 301 (2006). Rook's Textbook of Dermatology vol. 2 (Tony Burns et al, 8th ed., WileyBlackwell2010).

2

STATEMENT OF THE CASE This case arises out of the circumstances and unfortunate death of Erika Herren Anderson (hereinafter "Erika") from metastatic melanoma on November 3, 2009. (Petition ^ 20; App. p. 20). As a result of her death, Plaintiffs brought his action against Defendant Iowa Dermatology Clinic, P.L.C. (hereinafter "Iowa Dermatology"), Dr. Charles W. Love (hereinafter "Dr. Love"), and Pathology Laboratory, P.C. now known as Pathology Associates (hereinafter "Pathology Associates") asserting that had Defendants properly diagnosed Erika and timely commenced treatment, she would still be alive today. (Petition; App. pp. 1-23). This action was initiated on August 11, 2010. Id. Plaintiffs allege that Defendant Iowa Dermatology by and though Defendant Dr. Love was negligent in their care of Erika and that the negligent care resulted in her death. (Petition Count I, lf7; App. p. 9). Further, Plaintiffs allege that Defendant Pathology Associates were negligent for their care of Erika when microscopically evaluating her biopsied lesions in 1997, 1998 and 1999. (Petition Count II, ^[15; App. pp. 15-16). Additionally, Plaintiff seeks recovery for loss of spousal consortium to Erika's surviving husband, Todd, caused by Defendants negligent care. (Petition Count III ^2- App. p. 18; Count IV \2App. pp. 19-20). Finally, Plaintiff makes claim for loss of parental 3

consortium against Defendants on behalf of Erica's two surviving children, Ryan and Brynn. (Petition Count V ^2- App. p. 21; Count VI ^[2- App. p. 22). On October 11, 2010, Defendant Iowa Dermatology and Defendant Dr. Love filed a Motion for Partial Summary Judgment. On October 15, 2010, Defendant Pathology Associates filed A Motion for Summary Judgment. Both motions alleged that the statute of limitations and statute of repose had both run according to Iowa Code § 614.1(9). On February 22, 2011, Plaintiffs filed their resistance to Defendants' Motions for Summary Judgment and Partial Summary Judgment. (Ruling p. 1; App. p. 303). Plaintiffs also produced a Memorandum of Authorities, a Response to Defendant's Statement of Undisputed Facts, and Appendix. Id. On March 2, 2011 a hearing was held by the district court. Id. On March 31, 2011, the Honorable Judge Richard G. Blane II entered his ruling. (Notice of Appeal p. 2; App: p. 328). As a result of Judge Blane's unfavorable ruling, Plaintiffs filed a notice of appeal on April 27, 2011. Finally, on May 6, 2011, Plaintiffs filed an interlocutory appeal in lieu of their original appeal. STATEMENT OF FACTS Erika died on November 3, 2009 due to a metastasized melanoma that had infiltrated her liver. (Ruling p. 4; App. p. 306). Erika was a graduate of 4

Drake Law School, a lobbyist in Des Moines, a wife, and most importantly a mother of two (2) young children. (PMA p. 1; App. p. 97). Erika's death was both tragic and preventable, if her melanoma had been diagnosed and treated at its early onset. Erika began her ongoing course of treatment with Defendant Iowa Dermatology and Dr. Love, a dermatologist, on September 18, 1996. (Ruling p. 2; App. p. 304). Over the next eleven (11) years, Erika was treated by Iowa Dermatology and Dr. Love on twenty-six (26) occasions for the continuous care of various moles and lesions across her body - specifically the lesion on her neck that was removed on her first office visit. Id. Specifically, Iowa Dermatology by and through Dr. Love provided continuous care to Erika on the following dates: September 18, 1996; January 2, 1997; February 15, 1997; June 3, 1997; July 8, 1997; January 27,1998; February 28, 1998; March 6,1998; August 18, 1998; September 4, 1998; September 11, 1998; March 2, 1999; April 1, 1999; April 9, 1999; April 15, 1999; April 23, 1999; July 19, 1999; August 24, 1999; October 4, 1999; November 9, 1999; September 26, 2000; September 10, 2002; March 15, 2004; September 15, 2004; June 14, 2006; and September 6, 2007. (PMA p. 2; App. p. 98). Six (6) of the appointments between Erika and Dr. Love resulted in a biopsy being done on the left side of Erika's neck. (Ruling p. 3; App. p. 305). These biopsies were performed 5

on September 18, 1996; February 28, 1998; September 4, 1998; April 1, 1999; April 9, 1999; and April 15, 1999. Id. Malignant melanoma was never microscopically diagnosed in any of the six tissue specimans taken from Erika's left neck by any of the Defendants. Of the six (6) biopsies taken from Erika's neck, five (5) were sent to Defendant Pathology Associates to be microscopically evaluated by Dr. Scupham. Id. The biopsied lesions Dr. Scupham received were from September 18, 1996; September 4, 1998; April 1, 1999; April 9, 1999; April 15, 1999. Id. Each lesion was microscopically evaluated and each was determined to be noncancerous. Id. Pathology Associates would occasionally mount the specimen on a slide so it could be microscopically evaluated and then would send the slide back to Iowa Dermatology and/or Dr. Love for such an evaluation. ( PMA p. 3; App. p. 99). The February 28, 1998 slide was microscopically evaluated by Dr. Love, not Dr. Scupham (Ruling p. 3; App. p. 305). The February 28, 1998 slide was later inadvertently destroyed while under the custody of Dr. Love. Id. After April 15, 1999, Pathology Associates never received another skin specimen from Iowa Dermatology in regards to Erika's neck lesion. Id. On March 18, 2008, Erika discovered a lump under her chin and decided to see Dr. Mark K. Zlab, an ear, nose, and throat specialist working 6

at the Iowa Clinic. (PMA p. 4; App. p. 100). On August 14, 2008, after almost 5 months of treatment, Erika decided to have the lump biopsied. Id. On August 19, 2008, Erika was advised that biopsied tissue specimen was determined to be melanoma. (Ruling p. 3; App. p. 305). After the diagnosis was made, Dr. Zlab referred Erika to the Mayo Clinic in Rochester, Minnesota (hereinafter "Mayo"). (PMA p. 4; App. p. 100). While at Mayo, Erika came under the care of Dr. Mark Pittelkow, a dermatologist, and Dr. Eric Moore, an ear, nose, and throat specialist. Id. In conjunction with the Mayo evaluation, Erika's tissue specimans from her left neck were sent to Mayo for an independent evaluation. Id. Significantly, the tissue samples of the first biopsy from September 18, 1996, excised by Defendant Dr. Love and evaluated by Defendant Pathology Laboratory were reviewed by the specialists at Mayo on August 29, 2008, who determined said specimen to be "malignant melanoma without ulceration, at least Clark's Level II, at least Breslow thickness of 0.38mm." Id. Likewise, the specimens from April 1999 were evaluated at Mayo and determined to show malignant melanoma. (SJ App. Tab 1, Ex. 3; App. p. 200-202) Following the diagnosis, Erika began a long and painful course of treatment at Mayo. (PMA p. 5; App. p. 101). In December of 2008, Erika returned to Mayo for her three (3) month check up. Id. During the check 7

up, it was determined that the melanoma had spread to her liver. Id. After two (2) unsuccessful attempts with eight (8) week courses of chemotherapy, Erika decided to seek treatment at the esteemed MD Anderson Center in Houston, Texas. Id. Regrettably, Erika passed away as a result of Defendants' negligent care in failing to timely diagnose and treat her melanoma. Id.

ROUTING STATEMENT For this matter to be decided properly there should be a change in existing Iowa law. Accordingly, the Iowa Supreme Court should hear this case pursuant to Iowa R. App. P. 6.1101(2)(d).

PRESERVATION OF ERROR The record created by the Plaintiffs in resistance to the Defendant's Motion for Summary Judgment adequately preserved error in all issues the Plaintiffs bring on appeal. See Memorandum of Authorities.

8

I.

THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO THE APPLICABILITY OF THE DOCTRINE OF EQUITABLE ESTOPPEL WHICH BARS DEFENDANTS FROM EVEN ASSERTING A LIMITATIONS DEFENSE.

II.

THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO THE APPLICABILITY OF THE CONTINUUM OF NEGLIGENT CARE DOCTRINE WHICH DELAYS THE COMENNCEMENT OF THE STATUTE OF LIMITATIONS UNTIL SEPTEMBER 6, 2007.

STANDARD OF REVIEW The trial court's decision to grant the Motion for Summary Judgment is reviewed for the correction of errors at law. See Iowa R. App. P. 6.907; Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000). Error at law is found when the record before the trial court contains a material fact or, if no material fact exists, the law was applied incorrectly. Shriver v. City of Okoboji, 567 N.W.2d 397, 400 (Iowa 1997). In making its review, the court should view the entire record in a light most favorable to the non moving party. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).

9

Further, the court should "indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question." Id. (citing Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 454 (Iowa 1989). Additionally, a fact is material only if the dispute is over facts that may affect the outcome of the suit. Junkins v. Branstad, 412 N.W\2d 130, 132 (Iowa 1988). ARGUMENT A. Plaintiffs Claim of Equitable Estoppel Should Bar Defendants' from Asserting their Limitations Defense in this Case. Defendants argue that any claims of negligence arising from the care and treatment of decedent Erika occurring more than six years prior to the filing of this lawsuit are time barred by the Statute of Repose as set forth in Iowa Code § 614.1(9). While it is undoubtedly true that if the Statute of Repose is applicable, Plaintiffs are precluded from bringing any cause of action for a negligent act six years after the occurrence of that act, the doctrine of equitable estoppel is applicable and should estop the Defendants from raising a limitations defense. The doctrine of fraudulent concealment is a form of equitable estoppel that precludes a defendant from raising a statute of limitations defense. Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005). "Fraudulent 10

concealment does not affect the running of the statutory limitations period; rather, it estops a defendant from raising a statute-of-limitations defense." Id. "Equitable estoppel bars a defendant from pleading the running of statute of limitations if the plaintiff is induced to refrain from bringing a timely action by the defendant's fraud, misrepresentation, or deception." Id. (quoting 51 Am.Jur.2d Limitation of Actions § 399, at 705). The foundational elements of equitable estoppel are well established: (1) The defendant has made a false representation or has concealed material facts; (2) the plaintiff lacks true knowledge of the facts; (3) the defendant intended the plaintiff to act upon such representations; and (4) the plaintiff did in fact rely upon such representations to his prejudice. Christy, 692 N.W.2d at 702. "To prove the first element of equitable estoppel/fraudulent concealment, the plaintiff must prove either (1) 'that the defendant affirmatively concealed the facts' or (2) 'a confidential or fiduciary relationship exists between the person concealing' the facts and 'the aggrieved party.'" Baier v. Ford Motor Company, 2005 WL 928615 (ND Iowa 2005) (quoting McClendon v. Beck, 569 N.W.2d 382, 385 (Iowa 1997)) (emphasis added). Here, the record shows that a confidential relationship existed between Plaintiffs and the Defendants and that the ii

Defendants concealed material facts relating to the care of Erika. (Iowa Code 622.10 (2009): the physician-patient relationship is confidential). A patient who has undergone a biopsy because of a concern for skin cancer has a right to know and to understand not only who is making the life-changing determination as to whether orriotthe patient has skin cancer, but also has a right to know whether said person is the most qualified person to make that determination. In the District Court's decision finding that the doctrine of equitable estoppel was not applicable, the Court incorrectly stated that "Plaintiffs cite no legal authority for the contention that Erika had a 'right to know' who was actually performing the analysis on the biopsied tissue samples." (See Ruling on Motion for Summary Judgment (Ruling p. 16; App. p. 318)). The Court further stated that "there is no basis in the law that Defendants were obligated to advise Erika that Dr. Love was not the most qualified and that a pathologist had to analyze the tissue slide." Id. However, in coming to this conclusion, the Court ignored the "patient rule" as enunciated by the Iowa Supreme Court in Pauscher v. Iowa Methodist 1

Medical Center, 408 N.W.2d 355 (Iowa 1987). In Pauscher, the Court described the "patient rule" (doctrine of informed consent) as follows:

1

Marc Humphrey, attorney for Plaintiffs, cited Pauscher during the oral arguments that were held on March 2, 2011 and made the argument that under the "patient rule" Erika was entitled to all material information which a reasonable patient would find important in making decisions regarding medical care and that the fact that the biopsy slides were not being evaluated by the most qualified professional was certainly the type

12

the doctrine of informed consent arises out of the unquestioned principle that absent extenuating circumstances a patient has the right to exercise control over his or her body by making an informed decision concerning whether to submit to a particular medical procedure.

The physician's duty to disclose is measured by the patient's need to have access to all information material to making a truly informed and intelligent decision concerning the proposed medical procedure. Pauscher, 408 N.W.2d at 358-359 (citing Cowman v. Hornaday, 329 N.W.2d 422, 424-25, 27 (Iowa 1983)). As this tragic event has clearly demonstrated, the failure to timely diagnose cancer can have deadly consequences. For this reason, the comparative qualifications of those persons evaluating slides for the presence of cancer falls within the category of material information that must be provided to a patient so that the patient can make an intelligent, informed decision regarding her future treatment. It is clearly important information which a reasonable careful patient would want to know in making decisions about her care and treatment. These microscopic evaluations, if done negligently, often mean the difference between life and death when the issue is possible skin cancer or melanoma. Thus, medical professionals have a duty to divulge to a patient whenever a biopsied tissue of material information that a reasonable patient would find important (Transcript of hearing on motions for summary judgment; App. p. 443)

13

specimen is not being interpreted by the most qualified medical 2

professional, a board certified pathologist Here, Defendants Dr. Love and Iowa Dermatology never explained to Plaintiffs that the skin slides taken as a result of the many biopsies that Erika underwent were being examined inhouse by Dr. Love, a dermatologist, and not by a board certified pathologist. (Affidavit of Todd Herren p. 2; App. p. 278). Not only did Erika and Todd not know that Dr. Love was interpreting her tissue specimens, Plaintiffs understandably did not appreciate the differences in the training and the abilities of a dermatologist as compared to a pathologist as it relates to the interpretation of excised skin for the presence of cancer. (Affidavit of Todd Herren p. 2; App. p. 278). Nor were they told that Mayo Clinic, one of the top medical institutions in the world routinely evaluates such specimans, if requested. Furthermore, Defendants Dr. Love and Iowa Dermatology never explained the differences or the significance thereof in the training and the abilities of a dermatologist as compared to a board certified pathologist or dermatopathologist as it relates to the interpretation of excised skin for the presence of cancer. Id. The failure of Dr. Love and Iowa Dermatology to disclose such material facts to their patient regarding the care and treatment of Erika amounted to a misrepresentation and a violation of the patient rule 2

Board certified pathologists (either dermatopathologists or pathologists (AP/CP or AP boarded)) have superior training than dermatologists to recognize cellular abnormalities, including melanoma, under a microscope than do dermatologists (Affidavit of Joy Trueblood p. 3; App. p. 275).

14

because the withholding of this information prevented Erika from making a truly informed and intelligent decision concerning her treatment. Because of this failure of Defendants to inform Plaintiffs that the slides were being interpreted in-house by Dr. Love and not sent out to a more qualified medical professional, Plaintiffs were misled and given a false sense of security. The Plaintiffs were led to believe that Erika was receiving the best care when in fact the slides were not being consistently reviewed by the most qualified medical professional. Failing to inform Plaintiffs of all material facts relating to her care, the Defendants' action constituted a misrepresentation which generates genuine issues of material fact as to the applicability of the doctrine of equitable estoppel. Defendants Dr. Love and Iowa Dermatology Clinic intended the Plaintiffs to rely upon their representations that the skin excised from Erika's body was being reviewed by the most qualified medical professional and the Plaintiffs did in fact rely upon such representations to their detriment. Plaintiffs reliance was the reasonable and the foreseeable result of said misrepresentations particularly given the nature of the doctor-patient relationship. Had Erika known that the slides were not consistently being

3

See Murtha v. Cahalan, 745 N.W.2d 711, 718 (Wiggins, concurrence) (citing Hardi v. Mezzanotte, 818 A.2d 974, 980 (D.C.2003)): (holding when the physician is at the stage where he is providing a diagnosis and advice for the patient's medical care, the patient cannot be expected to question him or know the doctor's actions might be negligent and result in harm to the patient).

15

interpreted by a board certified pathologist, Erika would have sought treatment elsewhere. (Affidavit of Todd Herren p. 3; App. p. 279). At a minimum, she would have asked that her tissue specimens be microscopically evaluate elsewhere, such as the Mayo Clinic. Furthermore, had a board certified pathologist reviewed each and every slide created as a result of the multiple biopsies, the likelihood that the cancer would have 4

been discovered at an earlier time would have increased. The Plaintiffs' reasonable reliance on Defendants' misrepresentations prevented them from discovering the negligent acts ofthe Defendants in a timely manner but also prevented the Plaintiffs from filing this suit within the time period required by the statute of repose. Defendant Pathology Associates should also be estopped from asserting a limitations defense. Erika was under the collective care of the Defendants from a period beginning September 18, 1996 to September 6, 2007. Throughout this time period, Erika never received any correspondence from Defendant Pathology Associates detailing the extent of its involvement with her care. For example, at no time did the Defendant Pathology Associates directly provide Erika with information detailing its findings/conclusions based upon its review ofthe excised skin. The most 4

Board certified pathologists (either dermatopathologists or pathologists (AP/CP or AP boarded)) have superior training than dermatologists to recognize cellular abnormalities, including melanoma, under a microscope than do dermatologists (Affidavit of Joy Trueblood p. 3; App. 275).

16

egregious failure to inform occurred when the Defendant failed to inform Erika that in February, 1998, it prepared a biopsy slide for Dr. Love, but did not have any of the board certified pathologists that it employs examine the slides for the presence of cancer. (Affidavit of Todd Herren p. 2; App. 278). This failure to keep its patient, to whom it owed a duty, apprised of the extent of its involvement in her care amounted to a misrepresentation. If a tissue specimen is sent to a pathology lab, it is reasonably foreseeable that a patient would conclude that a board-certified pathologist would review the tissue specimen microscopically and not simply prepare it into a slide and send it off for review by a less qualified party. Thus, from a review of the relevant facts, it is clear that the Plaintiffs "lacked the true knowledge of the facts." The Plaintiffs were unaware of the extent to which Pathology Associates was involved in Erika's care and the Defendants made no effort to inform the Plaintiffs of such. (Affidavit of Todd Herren p. 2; App. 278). Defendant Pathology Associates intended Erika to act upon its misrepresentations and indeed she relied upon these misrepresentations to her detriment. Had Plaintiffs known the extent of the involvement of the Defendant or the lack thereof, she would have demanded that the slides be reviewed by the most qualified medical professional, a board certified pathologist. (Affidavit of Todd Herren p. 3; App. 278); (Affidavit of Joy 17

Trueblood p. 3; App. 275). Had the slide prepared by the Defendant in February 1998 been reviewed by a board certified pathologist, the likelihood that the cancer would have been diagnosed earlier would have increased. This failure to provide the Plaintiffs with all material facts regarding their treatment of Erika deprived Plaintiffs of their right to seek the best possible medical care and ultimately delayed the discovery of the cancer and the filing of this suit. For these reasons, the Defendants should be estopped from claiming a limitations defense. In conclusion, Todd Herren and Erika were misled by Defendants into believing that the skin excised from Erika during the many biopsies she underwent was consistently being examined by a board certified pathologist. Because Defendants led Plaintiffs to believe that the slides excised from Erika's body were being examined by a board certified pathologist and not in-house by Iowa Dermatology, Plaintiffs continued under Defendants' collective care and did not seek a second opinion or demand an examination of all slides by a board certified pathologist. The misrepresentations and the reasonable and expected reliance upon those representations not only meant that Plaintiffs did not discover the cancer until it was too late but also made it impossible for Plaintiffs to file suit within the six year period following Defendants' first crucial error. For these reasons, Defendants should be

18

equitably estopped from raising a limitations defense and thus the District Court erred in granting Defendants' motions for summary judgment based on the statute of frauds. B. In Accordance with the Continuum of Negligent Treatment, the Limiting Statutes Should Not have Began to Run Until September 6, 2007. Both Motions for Summary Judgment filed by Defendants against Plaintiff in this case largely raise the same argument. Specifically, Defendants Iowa Dermatology, Dr. Love, and Iowa Pathology Associates argue that any allegations of negligence arising from care and treatment of decedent Erika occurring more than six years prior to the filing of this lawsuit are time barred by the Statute of Repose as set forth in Iowa Code § 614.1(9). See Iowa Code § 614.1(9) (stating that "in no event shall any action be brought more than six years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death unless a foreign object unintentionally left in the body caused the injury or death"). As discussed above, it is Plaintiffs contention that both Defendants should be precluded from even asserting a limitations defense in this case. However, if Defendants are permitted to rely upon the statute of repose as contained in Iowa Code § 614.1(9), pursuant to the continuum of negligent treatment doctrine, as against Iowa Dermatology 19

and Dr. Love, that period would not have begun to run until September 6, 2007, thus rendering all of Plaintiffs claims against those Defendants timely filed under Iowa law. i.

The continuum of negligent treatment applies to Iowa Dermatology and Dr. Love because there was a continuous and unbroken course of negligent treatment that was so related that the treatment constituted one continuing wrong. Importantly, this Court has entertained adoption of the continuum of

negligent care doctrine for more than fifteen years. See Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995). Pursuant to that doctrine, a statute of repose may be tolled if the Plaintiff is able to establish the following requirements "(1) that there was a continuous and unbroken course of negligent treatment, and (2) that the treatment was so related as to constitute one continuing wrong." Id. (citing Cunningham v. Huffman, 609 N.E.2d 321, 325 (1993)). Significantly, if the above requirements are met, the limitations statute does not begin to run until the last date of negligent treatment. Id.; see also Ferrara v. Wall, 753 N.E.2d 1179 (2d Dist. 2001) (stating that "the negligent medical treatment continuum begins on the medical practitioner's first negligent medical treatment of the patient and continues until the practitioner's last negligent medical treatment of the patient, at which point the repose period begins to run") (emphasis 20

added). This doctrine has wisely been adopted and applied to toll statutes of repose in a number of jurisdictions in cases involving continuous negligent treatment. See e.g. Comstock v. Collier, 737 P.2d 845 (Colo. 1987); Blanchette v. Barrett, 640 A.2d 74 (Conn. 1994); Cunningham v. Huffman, 609 N.E.2d 321 (111. 1993); Smith v. Dewey, 335 N.W.2d 530 (Neb. 1983); Hull v. Medical Associates of Menomonee Falls, Ltd., 589 N.W.2d 454 (Ct. App. 1998). To be certain, the rationale for this doctrine finds its strength in the principles of fairness and justice that are the hallmarks of our civil justice system in Iowa. In the Cunningham case relied upon by the Court in the Langner decision, the Illinois Supreme Court applied the continuum of negligent treatment doctrine to toll its statute of repose in a medical malpractice action. 609 N.E.2d 321. Significantly, the Illinois statute of repose for medical malpractice actions in that case employed strikingly similar language to Iowa Code § 614.1(9). See Id. (ruling that the word "occurrence" as contained within the Illinois statute of repose may include a continuing negligent course of treatment for a specific condition). Further, in 5

construing the meaning of the phrase "the act or omission or occurrence," contained in its statute of repose, the Illinois Supreme Court found it

5

lowa Code § 614.1(9) utilizes the same "act or omission or occurrence" language.

21

improbable that the state legislature intended the word "occurrence" to be limited to a singular event. See Miller, Robin, Timeliness of Action Under Medical Malpractice Statute ofRepose, Aside from Effect of Fraudulent Concealment of Patient's Cause ofAction, 14 A.L.R.6th 301 (2006) (citing Cunningham, 609 N.E.2d 321). Rather, the Cunningham court determined that "[w]hen the cumulative result of continued negligence is the cause of the injury, the statute of repose cannot start to run until the last date of the negligent treatment." Id. While the Court has yet to officially adopt the continuum of negligent treatment doctrine, it has clearly indicated a willingness to do so should the right case act as a vehicle for its adoption. This is that case. a. Defendants Iowa Dermatology and Dr. Love provided a continuum of negligent care when they failed to diagnose Erika's melanoma through the diagnostic testing and physical examinations that spanned from 1996 to 2007. As stated above, the first requirement for tolling a statute of repose through the continuum of negligent treatment doctrine is that there must be a continuous and unbroken course of negligent treatment. Langner, 533 N.W.2d at 522 (citing Cunningham, 609 N.E.2d at 325). In this case, there was clearly a continuous, unbroken course of negligent treatment with Defendants Iowa Dermatology and Dr. Love spanning more than ten years. 22

(Deposition of Dr. Love pp. 51-52; App. 132). The decedent, Erika, began treating with Iowa Dermatology and Dr. Love on September 18, 1996. (Deposition of Dr. Love p. 51; App. 132). Importantly, this professional relationship between patient and physician was initiated by Erika in part due to concerns she was having with an irregular mole she found on her left neck. (Deposition of Dr. Love p. 53; App. 133). On that date, said mole was excised and sent to Pathology Associates. (Dr. Love Deposition Ex. 1, App. 163-194). From that first visit of September 18, 1996, Erika would consistently treat with Iowa Dermatology and Dr. Love on twenty-six separate occasions over a ten year period. (Deposition of Dr. Love, pp. 51-80; App. 132-139). Significantly, on each and every visit the skin ofher left neck, and particularly the location where the troublesome mole was excised, would be an area of concern for both Erika and Dr. Love. {Id.; Affidavit of Todd Herren, App. 10). To be sure, Dr. Love's records reflect that her left neck area was continuously examined at each office visit. (Dr. Love Deposition, pp. 51-80, App. 1; Dr. Love Deposition Ex. 1, App. 2). Moreover, to further amplify the continuous nature of the treatment Erika was receiving on her left neck, that area was biopsied on six separate occasions for microscopic evaluation. (Dr. Love Deposition Ex. 1; App. 23

163-194). However, each time such biopsies would occur, it was indicated to Erika, and her husband Todd Herren, that the tissue was benign and noncancerous. (Affidavit of Todd Herren; App. 277). Indeed, despite the extensive and ongoing nature of her treatment with Iowa Dermatology and Dr. Love, the lesion on Erika's left neck would not be diagnosed as melanoma until it was much too late. Although testing indicated the lesions were noncancerous, Erika was still at risk for melanoma (Depo of Dr. Love, 29 Iflf 9-11; App. p. 127). Plaintiffs insist that the knowledge of Erika's increased risk should have caused Dr. Love to take extra care in assessing Erika's neck lesion. The final series of biopsies revealed an atypia in the lesion. (Depo of Dr. Love, p. 68 U 2; App. p. 136). In April of 1999, three separate tissue specimens were harvested. Each new specimen was requested by Dr. Scupham in order to assure that there were clear margins. The repeated requests for deeper margins, coupled with the finding of atypia should have heightend the concerns of both Dr. Love and Dr. Scupham about skin cancer. It apparently did not even though Defendant Dr. Love admits that an atypia can, in some cases, create a concern of melanoma. (Depo of Dr. Love, p. 6823; App. p. 136). Shouldn't Erika have been informed of those findings? Shouldn't she have been given the opportunity to know that there was good reason to 24

request an independent microscopic evaluation ofher tissue specimens, given the dire consequences which would flow from a failure to properly diagnose melanoma? Defendants knew that Erika was at risk for melanoma when she came in for her initial visit. (Depo of Dr. Love, p. 291fl 1; App. p. 127). Later testing revealed another potential sign for melanoma, yet Dr. Love took no further action. Plaintiffs contend that Dr. Love should have done further testing to check for melanoma and his failure to do so constituted a continuous course of negligent treatment that ended September 6, 2007. According to Rooks Textbook of Dermatology, a traditional follow up appointment after the excision of a primary melanoma with no spreading has three steps. Rook's Textbook of Dermatology vol. 2 Ch. 54.53 (Tony Burns et al, 8th ed., Wiley-Blackwell 2010). The first step is to check for any local reoccurrence around the scar. Id. Second, the physician should palpate the local drainage nodes for any clinically detectable evidence of nodal spread. Id. Finally, the doctor should examine the rest of the skin surface for a second primary melanoma. Id. According to the deposition of Dr. Love, Erika and he had numerous appointments after the last excision from her neck. (Depo of Dr. Love, pp. 73- 80; App. pp. 138-139). During these appointments, Dr. Love would examine Erika's neck and then the rest ofher 25

body for new moles or lesions. Id. Plaintiffs are dumbfounded as to why Dr. Love would perform two (2) of the three (3) physical examinations used for metastasis analysis, but not the third and , in this case, most important physical examination. Clearly, this record demonstrates genuine issues of material fact as to the thoroughness of Dr. Love's followup evaluations of Erika, particularly given the finding of atypia and the difficulty in obtaining clear margins during the April 1999 biopsies. A jury could reasonably find a continuum of negligent care on the part of Dr. Love with regard to his failure to adequately evaluate Erika for possible metastatic melanoma. After acknowledging that Iowa Dermatology and Dr. Love continued to treat and examine Erika, the District Court erroneously distinguished between the examination and the treatment of a patient, apparently, holding that a doctor can be liable for negligent treatment but not for a negligent failure to treat: Although Erika continued to treat with Dr. Love, and he examined the excised area on the left side of her neck, no further biopsies were performed in that area and no other medical treatment was provided to that area. His continuing treatment, as shown by Dr. Love's medical records, was examination and treatment to other areas of the body. Dr. Love provided no further "negligent treatment" to that part of Erika's body - the left side of the neck where the mole had been excised.

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By making this arbitrary distinction between examination and treatment, the Court failed to recognize Plaintiffs claim that Defendants negligently failed to properly examine Erika each of the twenty-six times over a ten year period that she presented with concerns about the left side ofher neck. It is undisputed that Dr. Love examined the left side of Erika's neck. (Depo of Dr. Love, pp. 51-80; App. pp. 132-139). As noted above, Dr. Love's was continuously negligent in his examinations of Erika, failing to follow the standard of care. Further, genuine issues of material fact exist as to whether Iowa Dermatology and Dr. Love are negligent for not instructing Erika on how to properly palpate her own lymph nodes so that she could actively manage her lesions and the surrounding area. Rook's Textbook of Dermatology states that all patients who have undergone either stage one or stage two melanoma surgeries should be instructed on how to assess the lesion, surrounding lymph nodes, and other moles to see if the melanoma has returned or spread from the original site. While Dr. Love and Dr. Scupham never made such a diagnosis, such a diagnosis was made when the Mayo Clinic pathologists independently evaluated the same tissue specimens. Further, the finding of atypia in April of 1999 should have increase the level of suspicion for melanoma and therefor dictated the thoroughness of the followup 27

evaluations performed after the April 1999 biopsies. Rook's Textbook of Dermatology vol. 2 Ch. 54.53 (Tony Burns et al, 8th ed., Wiley-Blackwell 2010). Again, like the follow up visits with Dr. Love, Dr. Love would have had to make minimal effort to explain and demonstrate to Erika how she could palpate her lymph nodes. But, neither Dr. Love nor anyone else at Iowa Dermatology took the time to make Erika aware of the proper procedures. A few short sentences and a quick demonstration could have been the deciding factor in Erika's fate, but Dr. Love made the decision to not tell her and practically sealed her fate with his omission. Perhaps what is most unsettling about the whole series of events that ultimately led to Erika's premature death is that it could have been avoided if Dr. Love had merely done every step in the process and concluded his examination by palpating Erika's lymph nodes inches from her surgical site. If this small, but crucial step, were taken, Erika would still be providing love and support for her husband and children. Unfortunately, this is not the case. Due to Dr. Love's negligent follow up care that spanned from 1999 to 2007, Erika passed away from melanoma that spread to her lymph nodes and finally to her liver. Additionally, there are several other tests that should have been performed to detect the metastasis of the melanoma. According to Rook's 28

Textbook of Dermatology, a sentinel node biopsy, chest X-ray, or blood tests are routinely performed to check for metastasis. Rook's Textbook of Dermatology vol. 2 Ch. 54.51 (Tony Burns et al, 8th ed., Wiley-Blackwell 2010). Judge Blane, in granting the Motions for Summary Judgment, concluded that there are no genuine issues of material fact which a jury should decide. Is such a conclusion consistent with the legal requirement that Erika Herren be given every reasonable inference possible from the factual record before the court. In this case, the record unequivocally establishes that both Dr. Scupham and Dr. Love failed to timely diagnose the malignant melanoma from the tissue specimens taken from the left side of Erika's neck. One only has to look at the Mayo Clinic pathological microscopic evaluation of those same tissue specimens to come to such a conclusion. The record also demonstrates clearly that the primary lesion was the lesion on the left side of Erika's neck. (See Mayo Records; App. pp. 281-282). Further, the record clearly establishes that the melanoma had spread by the time of the diagnosis. (See records of Dr. Zlab (Iowa Clinic); App. pp. 284-285). The last tissue removal from Erika's left neck occurred on April 15, 1999. The margins were deemed to be clear by Dr. Scupham meaning that there is no remaining tissue from that lesion or mole as of that date. As such, the spead of that melanoma had already occurred by April 15, 29

1999. Even though Dr. Love consistently evaluated the location of the left neck lesion by visual inspection, he never performed any further tests to determine whether there had been any spread despite clinical indications of that possibility. All of those undisputed facts, when giving Erika every reasonable inference, generates a jury issue on whether Dr. Love was negligent in his followup care. In all due respect to the lower court, the absence of any documented treatment to that area does not equate to the absence of negligence on the part of Dr. Love. A jury should be allowed to decide whether he engaged in a continuim of negligent care to Erika following his last biopsy of April 15,1999. The negligent nature of this continuous treatment became apparent after Erika began treating with the Mayo Clinic, which reviewed the tissue specimens removed from her left neck area over the course of years she treated with Iowa Dermatology and Dr. Love and determined that those specimens were clearly indicative of malignant melanoma. (Dr. Love Deposition Ex. 3; App. pp. 196-198). As a result, this melanoma was diagnosable and curable as early as September 18, 1996. Id. In other words, Iowa Dermatology and Dr. Love had twenty-six missed opportunities to properly diagnose the lesion on Erika's left neck, and he failed. Tragically, these missed opportunities would ultimately cost Erika her life. 30

b. The treatment of Erika's skin lesions was so related that it constitutes one continuing wrong by both Iowa Dermatology and Dr. Love The second requirement for satisfying the continuum of negligent treatment doctrine is that the treatment must be so related so as to constitute one continuing wrong. See Langner, 533 N.W.2d at 522. In addressing this prong of the continuum of negligent treatment doctrine, Plaintiff would incorporate the arguments made in the immediately preceding subsections herein. As stated above, from September 18, 1996 to September 6, 2007, Erika would be personally seen by Iowa Dermatology and Dr. Love on twenty-six (26) separate occasions for medical care focused on the proper diagnosis and treatment of various moles and other skin lesions on her body. (Depo of Dr. Love, pp. 51-80; App. pp. 132-139). Specifically, the treatment that Erika received from Iowa Dermatology and Dr. Love on each such occasion would include examination and treatment of her left neck area. (Id.). Indeed, on six of those office visits tissue specimens were biopsied from Erika's left neck area for microscopic evaluation. (Dr. Love Deposition Ex. 1; App. pp. 163-194). However, the ongoing failure to accurately diagnose the lesion on Erika's left neck as malignant melanoma despite the consistent care and treatment she was receiving that was aimed

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toward that end constitutes one continuing wrong that persisted for a period of over ten years. As a result, both prongs of the continuum of negligent treatment doctrine have been satisfied and as such the statute of repose would not have begun running until September 6, 2007 thus bringing all of Plaintiff s claims as against Iowa Dermatology and Dr. Love within the six year repose period. Therefore, all of Plaintiff s claims against Iowa Dermatology and Dr. Love were timely filed under Iowa law. The tragedy of this case compels the adoption of the doctrine known as the continuum of negligent care which would preclude the application of an arbitrary statute of repose against a vigilant patient who was clearly let down by her physicians. ii.

The continuum of negligent care should apply to Pathology Associates because they worked in conjunction with Iowa Dermatology and Dr. Love to provide health care to Erika as one team. The gold standard for diagnosing malignant melanoma is to evaluate

tissue specimens from either a punch or excisional biopsy under the microscope, In Erika's case, on six separate occasions, Dr. Love did either a punch biopsy or an excisional biopsy of the mole on her left neck. Those tissue specimens were harvested on:

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• September 18,1996 - excisional biopsy evaluated microscopically by Pathology Associates • February 28,1998 - punch biopsy evaluated microscopically by Dr. Charles Love on March 4, 1998 • September 4,1998 - excisional biopsy evaluated microscopically by Pathology Associates • April 1,1999 - excisional biopsy evaluated microscopically by Pathology Associates • April 9, 1999 - wide excisional biopsy evaluated microscopically by Pathology Associates • April 15,1999 - excisional biopsy evaluated microscopically by Pathology Associates

On five of the six biopsies, Pathology Associates were asked to provide the microscopic evaluation of the tissue specimens. Dr. Scupham is the dermatopathologist from Pathology Associates who microscopically evaluated the tissue specimens. Dr. Scupham himself concedes that both he (Pathology Associates) and Dr. Love were part of the same medical team for Erika. His testimony is telling on that point: Q. How would you describe your relationship with Dr. Love's office in the process of evaluating those tissue specimens that were consistently removed from the left neck of Erika? A. Well, you know, we try to—You know, we try to work together. We try to make sure that the things that we're doing for the patient fit together so that we can come up with a coherent treatment and 33

follow-up plan for the patient. I guess I don't know exactly what you mean. Q. Well, I think you answered the question. I mean, would you consider yourself to be members of the same medical team? A. Oh, absolutely. Q. All right. And the goal that you would have for the patient is the earliest diagnosis of a potential problem? A. Absolutely. Q. And that would be the same goal that Dr. Love would have? A. Yes. Q. And you're working together to try to accomplish that goal? A. Uh-huh. Q. True? A. True. (Scupham deposition, pp. 40-41; App. pp. 240-241) While it is true that Pathology Associates did not remain actively involved as a member of the medical team after 1999, it was still undeniable a member of the team that provided a continuum of negligent care by failing to diagnose the malignant melanoma at the earliest opportunity. By analogy, a major league baseball team has a twenty-five player roster. Some of the members of that team may go for stretches without playing in any games. 34

However, each player on the roster is still a member of the team. They win or lose together as a team. Pathology Associates was integrally involved in the key "games" of Erika's medical treatment—five microscopic interpretations of tissue specimens from her left neck. It was an integral part of the medical team which provided a continuum of negligent care to Erika, negligent care which ended up taking her life at the young age of 37 years. Just because Pathology Associates did not actively participate in the later portions of Erika's treatment with Dr. Love's office should not insulate it from winning or losing as part of the same medical team. The continuum of medical care exception to the statue of repose legally holds Pathology Associates responsible just as it does Dr. Love.

CONCLUSION Erika was a vigilant patient who consistently followed up with regard to her concerns about skin lesions which were present on her body—26 follow up visits over the course of almost eleven (11) years. She trusted her doctors. She was never given any reason not to trust them. Yet unknown to her, cancer was methodically growing, unabated, in her body. She had absolutely no reason to be concerned about any potential legal action because she had absolutely no reason to suspect that her doctors had let her 35

down and failed to diagnose the cancer which was growing in her body. The statute of repose is a statue intended to prevent stale claims—this is not a case involving a stale claim. Erika's unnecessary death is still all too fresh in the hearts and minds ofher family. One exception was legislatively written into the statute of repose, an exception which recognizes how fundamentally unfair it would be to allow a doctor who negligently left a foreign instrument in a patient's body to escape liability, given the difficult challenge in discerning the fact that such an instrument was left behind after surgery. Erika's case is very analogous. Dr. Love and Dr. Scupham left inside Erika's body an undiagnosed cancer which was allowed to grow to the point that it took her life. She had no reason to suspect it because she had no symptoms. She had no reason to suspect it because she trusted her team of medical providers. Her family timely pursued the claim on behalf ofher estate once they became aware of the negligence of the medical team. This Court has consistently left the door open for the recognition of the continuum of negligent care exception and this is the case. Justice demands it. Fairness demands it. Further, if every participant in this case could candidly talk off the record, everyone would likely agree that under the facts of this case, Todd Herren and his two children, Ryan and Brynn, deserve a judicial remedy. Plaintiff would respectfully urge this Court to overrule the 36

determination ofthe district court in the ruling for the Motions for Summary Judgment filed on behalf of both Defendants.

REQUEST FOR ORAL ARGUMENT

Fax: (515)331-3544 Email: [email protected]

OLSON LAW OFFICE, P.C. Alan O. Olson AINOOOO14073 3116 Ingersoll Avenue Des Moines, Iowa 50312-3910 Ph: (515)271-9100 Fax (515) 271-8100 E-mail: [email protected] ATTORNEYS FOR APPELLANTS

Dated: 37

tf/^/W

CERTIFICATE OF FILING The undersigned attorney for Plaintiffs/Appellants hereby certifies th

that on this 5 day of October, 2011, he filed (18) eighteen copies of this Final Brief by delivering said copies to the Clerk of the Iowa Supreme Court, Iowa Judicial Branch Building, 1111 East Court Avenue, Des Moines, IA 50319.

ATTORNEY'S COST CERTIFICATE The undersigned attorney for Plaintiffs/Appellants certifies that the

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing instrument was served upon each of the attorneys of record of all parties to the above-entitled cause by enclosing the same in an envelope addressed to each such attorney at such attorney's address as disclosed by the pleadings of record here in on the 5th day of October, 2011. Steven Scharnberg Finley, Alt, Smith 699 Walnut Street 1900 Hub Tower Des Moines, IA 50309 ATTORNEYS FOR DEFENDANTS, IOWA DERMATOLOGY CLINIC PLC AND DR. LOVE Michael W. Ellwanger Rawlings, Nieland, Killinger, Ellwanger, Jacobs, Mohrhauser & Nelson, L.L.P. 522 4 Street, Suite 300 Sioux City, IA 51101 ATTORNEYS FOR DEFENDANT, IOWA PATHOLOGY ASSOCIATES, PC th

By: rjgj U.S. Mail • Facsimile £3 Hand Delivered • Overnight Courier • Federal Express • Other Signature: toLudt ItotoM

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Iowa R. App. P. 6.903(1 )(g)(l) because this brief contains 7,831 words, excluding the parts of the Brief exempted by Iowa R. App. P. 6.903(1 )(g)(l). This brief complies with the typeface requirements of Iowa R. App. P. 6.903( 1 )(e) and the type style requirements of Iowa R. App. P. 6.903(1 )(f) because this brief has been prepared in a proportionally spaced typeface using 14-point Times New^RcJman font in Microsoft Word.

Des Moinpsflowk 50312 Ph: (5^5)-3^3510 Fax: (515)331-3544 Email :[email protected]

OLSON/LAW^OFjjtelE, P.C. Alan O. Olson AIN000014073 3116 Ingersoll Avenue Des Moines, Iowa 50312-3910 Ph: (515)271-9100 Fax (515) 271-8100 E-mail: [email protected] ATTORNEYS FOR APPELLANTS

Dated: 40

&/'f/#//